Citation Nr: 1243972
Decision Date: 12/28/12 Archive Date: 12/31/12
DOCKET NO. 09-47 782 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana
THE ISSUES
1. Entitlement to service connection for prostate cancer, status post radical prostatectomy, to include as secondary to prostatitis with nongonococcal urethritis.
2. Entitlement to a rating in excess of 10 percent prior to December 14, 2011, and in excess of 20 percent thereafter for chronic lumbosacral strain.
3. Entitlement to a compensable rating for prostatitis with nongonococcal urethritis.
4. Entitlement to individual unemployability due to the service-connected disabilities (TDIU).
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
A. Lindio, Counsel
INTRODUCTION
The Veteran served on active duty from January 1974 to November 1994.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.
In a January 2012 rating decision, the RO granted a 20 percent disability rating for the chronic lumbosacral strain, effective December 14, 2011. The Veteran has not withdrawn his claim and is presumed to be seeking the maximum benefit allowed by law and regulation. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, such issue is characterized as shown on the first page of this decision.
The Veteran testified in August 2012 before the undersigned Veterans Law Judge sitting at the RO. A transcript of the hearing has been associated with the claims file.
The Board notes that the issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the Veteran argued that he is unemployed due, at least in part, to symptoms of his service-connected lumbar spine disability, the issue of entitlement to a TDIU has been raised. Therefore, as the Board has jurisdiction over such issue as part and parcel of the Veteran's increased rating claim, it has been listed on the first page of this decision
A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal that are not contained in the paper claims file.
The issues of entitlement to service connection for prostate cancer and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.
FINDINGS OF FACT
1. Prior to December 14, 2011, the Veteran's chronic lumbosacral strain was manifested by pain and limited range of motion. There was no objective evidence of forward flexion of the thoracolumbar spine of greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 170 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; favorable or unfavorable ankylosis of the thoracolumbar or entire spine; incapacitating episodes; or any neurological manifestations.
2. From December 14, 2011, the Veteran's chronic lumbosacral strain was manifested by pain, limited range of motion, and bowel impairment. There was no objective evidence of forward flexion of the thoracolumbar spine of 30 degrees or less; favorable or unfavorable ankylosis of the thoracolumbar or entire spine; incapacitating episodes; or any neurological manifestations other than bowel impairment.
3. As of December 14, 2011, the Veteran's chronic lumbosacral strain results in bowel impairment that is manifested by no more than occasional moderate leakage. There was no occasional involuntary bowel movements necessitating wearing a pad; excessive leakage and fairly frequent involuntary bowel movement; or complete loss of sphincter control.
4. The Veteran's prostatitis is not manifested by voiding dysfunction or urinary tract infections requiring treatment; his urinary symptoms are the result of his nonservice-connected prostate cancer, status post radical prostatectomy.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 10 percent prior to December 14, 2011, and in excess of 20 percent thereafter for chronic lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2012).
2. As of December 14, 2011, the criteria for a separate 10 percent rating, but no higher, for bowel impairment, as a neurological manifestation of chronic lumbosacral strain, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.114, Diagnostic Code 7332 (2012).
3. The criteria for a compensable rating for prostatitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.115b, Diagnostic Code 7527 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VA's Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).
In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits.
As relevant to the claims decided herein, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a November 2006 letter, sent prior to the initial unfavorable May 2007 rating decision, advised the Veteran of the evidence and information necessary to substantiate his increased rating claims as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish an effective date in accordance with Dingess/Hartman, supra.
In the instant case, neither the Veteran nor his representative has identified any deficiency in notice which would compromise a fair adjudication of the claim. Accordingly, the Board finds that VA has satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1).
Relevant to the duty to assist, the Veteran's service treatment records, and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Therefore, the Board finds that VA has satisfied its duty to assist in obtaining all available records.
The Board notes that the Veteran has been provided with VA examinations in the instant case. Specifically, he was afforded VA examinations in December 2006 and December 2011 so as to evaluate the nature and severity of his back disability and prostatitis. Neither the Veteran nor his representative has alleged that such examinations are inadequate for rating purposes. Moreover, the Board finds that the examination is adequate in order to evaluate the Veteran's service-connected back disability and prostatitis as they include an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's increased rating claims and no further examination is necessary.
The Veteran provided relevant testimony during the hearing before the undersigned in August 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, the undersigned Veterans Law Judge identified the issues on appeal and solicited the Veteran to identify evidence relevant to the claims. The Veteran described his current symptoms and the impact of his back and prostatitis disabilities on his activities of daily living. He also indicated that he had submitted his private treatment records to VA and did not receive treatment through the VA Healthcare System. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claims decided herein. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record.
Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims.
II. Analysis
Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity to the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.
While a Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.
Lumbar Spine Disability
The Veteran requested an increased rating for his lumbar spine disability, which at the time of his request, was rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a , Diagnostic Code 5237. In a January 2012 rating decision, the RO granted a 20 percent disability rating, effective December 14, 2011. At his August 2012 Board hearing and in documents of record, the Veteran claimed that his lumbar spine disability is worse than indicated by his previous 10 percent evaluation and his current 20 percent evaluation.
The General Rating Formula for Diseases and Injuries of the Spine assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. A 10 percent rating is assigned if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degree; or muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height.
A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.
A 40 percent evaluation is warranted if there is forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is granted if the Veteran has unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a.
Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.
Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.
Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.
Note (4): Round each range of motion measurement to the nearest five degrees.
Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.
Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.
Intervertebral disc syndrome can also be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Such provides that a 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.
Note (1): For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.
Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula For Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.
The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40.
With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45.
When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).
Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.
Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011).
The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.
The Board finds that the record does not support finding that the Veteran's lumbar spine disability is manifested by symptoms indicative of a disability rating in excess of 10 percent prior to December 14, 2011 or a disability rating in excess of 20 percent from December 14, 2011.
Prior to December 14, 2011, the Board finds that the Veteran is not entitled to an evaluation in excess of 10 percent. In this regard, the evidence of record fails to demonstrate forward flexion of the thoracolumbar spine to less than 60 degrees; the combined range of motion of the thoracolumbar spine to less than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.
In this regard, the only medical evidence of record applicable to rating the Veteran's claim for the appeal period prior to December 14, 2011 is the December 2006 VA examination report. The December 2006 VA examiner noted forward flexion of zero degrees to 90 degrees, with pain beginning at 90 degrees. Such findings demonstrate a range of motion greater than the forward flexion of less than 60 degrees for a 20 percent disability rating, even in contemplation of pain.
Additionally, the December 2006 VA examiner found active and passive range of motion findings. Extension was from 0 to 15 degrees (pain from 0 to 15 degrees). Flexion was from 0 to 90 degrees (pain at 90 degrees). Right lateral flexion was from 0 to 25 degrees (pain at 25 degrees). Left lateral flexion was from 0 to 20 degrees (pain at 20 degrees). Right lateral rotation was from 0 to 35 degrees (pain at 35 degrees). Left lateral rotation was from 0 to 25 degrees (pain at 25 degrees). With each finding, the examiner noted pain after repetitive use, but with no additional loss of motion after such use. Given these findings, the Veteran had a combined range of motion of the thoracolumbar spine in excess of 120 degrees, even in contemplation of pain. As such, a disability rating in excess of 10 percent is not warranted on this basis.
The December 2006 examiner also found no objective spasm, atrophy, guarding, and pain with motion tenderness or weakness. The examiner also specifically found no muscle spasm, localized tenderness or guarding severe enough to be responsible for abnormal gait or abnormal contour. As such, a disability rating in excess of 10 percent is not warranted on this basis.
For the period from December 14, 2011, the Veteran has a 20 percent disability rating. The Board finds that a disability rating in excess of 20 percent is not warranted. In this regard, the evidence of record fails to demonstrate that he has forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine for a 40 percent disability rating.
For rating purposes, the only medical evidence of record for rating the spine for this period is the December 2011 VA examination.
The December 2011 VA examiner noted range of motion findings. Flexion ended at 70 degrees (pain began at 45 degrees). Extension ended at 10 degrees (pain began at 5 degrees). Right lateral flexion ended at 15 degrees (pain began at 10 degrees) was from 0 to 25 degrees (pain at 25 degrees). Left lateral flexion ended at 15 degrees (pain began at 10 degrees). Right lateral rotation ended at 15 degrees (pain began at 10 degrees). Left lateral rotation ended at 10 degrees (pain began at 10 degrees).
The December 2011 VA examiner also performed range of motion testing following repetitive motion testing. Post-test, forward flexion ended at 45 degrees, extension ended at 10 degrees, bilateral lateral flexion ended at 10 degrees, and bilateral lateral rotation ended at 10 degrees. Following repetitive-use testing, the VA examiner found the Veteran to have additional limitation in range of motion, functional loss and/or functional impairment. The examiner noted contributing factors of less movement than normal, weakened movement, pain on movement, and interference with sitting, standing and/or weight bearing.
Based on the foregoing, in consideration the functional impairment resulting from repetitive motion testing, the Veteran's forward flexion ended at 45 degrees. As such, he did not demonstrate forward flexion to 30 degrees or less, which is necessary for a 40 percent disability rating. Therefore, for the period beginning December 14, 2011, the Board finds that the Veteran is not entitled to a rating in excess of 20 percent for his back disability.
Relevant to both periods on appeal, the record also shows that the Veteran does not have ankylosis of the thoracolumbar spine. The December 2006 VA examiner specifically found no ankylosis. The Board also notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5) (defining ankylosis as fixation of a joint in a particular position). Given the findings of the ranges of motion found by both VA examiners, the Board finds that that the Veteran does not have ankylosis. Thus, higher disability ratings for either period are not warranted.
In relation to both the period before and after December 14, 2011, the Board notes that, to the extent that the Veteran has pain on range of motion and repetitive motion testing, higher ratings are not warranted. The Court has recently held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell, supra. Indeed, in Mitchell, the Court found that nothing in its case law supports an appellant's contentions that she should be given the maximum disability ratings under Diagnostic Code 5260 and 5261 simply because she experienced pain throughout the range of motion of her left knee. Id. at 11.
However, it is necessary to consider functional loss due to flareups of pain, fatigability, incoordination, pain on movement and weakness. DeLuca, 8 Vet. App. at 206-7. The Board finds that there is evidence of functional impairment as a result of flare-ups of symptomatology; however, such functional impairment was contemplated by the RO when granting the 10 percent disability evaluation for the period prior to December 14, 2011. Moreover, even when considering the Veteran's pain with motion and his reports of loss of motion, he still does not meet the criteria for a disability rating in excess of 10 percent. The Board notes that the rating contemplates complaints of pain, especially on extended use. The December 2006 VA examiner specifically found no additional loss of motion on repetitive use and the Veteran denied having flare-ups during the examination. Thus, for the period prior to December 14, 2011, the Board finds that there is no showing of any other functional impairment which would warrant a higher rating for the complaints of pain not already considered by the 10 percent disability rating already assigned.
In regard to the period beginning on December 14, 2011, the December 2011 VA examiner noted some functional limitations, such as the Veteran reporting that he would work off and on depending on his back. The Board, however, finds that the 20 percent disability rating considers the Veteran's functional limitations due to pain. There is no showing of any other functional impairment which would warrant a higher rating for the complaints of pain. The next higher rating applicable for the Veteran requires forward flexion of the thoracolumbar spine of 30 degrees or less. Even after repetitive use testing, the examiner still found the Veteran to have greater than 30 degrees of forward flexion. Alternatively, higher ratings would also be possible with ankylosis of the spine, showing no range of motion. Given the ranges of motion found, a finding consistent with ankylosis is not supported by the record.
The Board notes that, under Note (1) of the General Rating Formula, any associated objective neurological abnormalities should be rated separately under an appropriate diagnostic code.
In this case, the Veteran has repeatedly claimed to have neurological abnormalities involving the bladder. The December 2006 VA examiner noted complaints of urinary incontinence, urgency, and nocturia. The examiner, however, found such problems to be residuals of the Veteran's nonservice-connected prostatectomy for prostate cancer. Additionally, during the December 2011 VA urinary tract and bladder examination, the VA examiner found that the Veteran did not have a neurogenic bladder. As such, a neurological bladder impairment is not supported by the record.
The Board does find, however, that the Veteran has a neurological bowel abnormality, as of December 14, 2011. In this regard, prior to such date, there was no evidence of bowel impairment. Specifically, at the December 2006 VA examination, the Veteran denied having fecal incontinence or constipation. The December 2011 VA examiner, however, found the Veteran to have frequent bowel movements that were sometimes spontaneous. Additionally, during the August 2012 Board hearing, the Veteran reported that that he had a hard time determining when he needed to pass a bowel and that sometimes it would seep out. Given the above evidence, the Board finds that the neurologic abnormality of a bowel impairment warrants a separate disability rating as of December 14, 2011, the date of the VA examination demonstrating such abnormality.
Under Diagnostic Code 7332, a zero percent rating is warranted for a healed rectum and anus or slight impairment of sphincter control without leakage. A 10 percent rating is assigned for constant slight impairment of sphincter control or occasional moderate leakage. A 30 percent rating is assigned for occasional involuntary bowel movements or impairment of sphincter control necessitating the wearing of a pad. A 60 percent rating is assigned for extensive leakage due to impairment of sphincter control and fairly frequent involuntary bowel movements. A maximum 100 percent rating is assigned under DC 7332 for complete loss of sphincter control. 38 C.F.R. § 4.114, Diagnostic Code 7332.
The Board finds that a 10 percent disability rating is warranted in contemplation of the Veteran's symptoms that most nearly approximate slight impairment of sphincter control or occasional moderate leakage. The December 2011 VA examiner noted that the Veteran sometimes had spontaneous bowel movements. Similarly, the Veteran reported that he sometimes he had bowel seepage when trying to urinate.
A disability rating in excess of 10 percent, however, is not warranted. The Veteran does not have occasional involuntary bowel movements or impairment of sphincter control necessitating the wearing of a pad. The Veteran reported, during the August 2012 Board hearing, that he sometimes wore a diaper when he knew he would be going out and could not go to the bathroom. That use, however, appears to be in relation to urinary frequency. Additionally, earlier during the hearing, when clearly discussing his bowel impairment, the Veteran indicated that it occurred when he would try to urinate. As such, the Board finds that the Veteran's pad usage appears to be in reference to his urinary impairment, which the Board has not found to be related to his back. The Board also notes that during the December 2011 urinary VA examination the Veteran denied the use of pads. Similarly, even higher ratings for extensive leakage due to impairment of sphincter control and fairly frequent involuntary bowel movements or complete loss of sphincter control are not indicated. At his hearing, the Veteran reported being able to control his bowel movements to a certain extent and that the severity of his leakage was just "seeping out". As such, only a 10 percent rating, and no higher, is warranted for the Veteran's bowel impairment.
The Veteran has also claimed to have neurological impairment of the lower extremities due to his lumbar spine disability. In May 2006, the Veteran's private medical provider Dr. G.S. noted that the Veteran complained of numbness of the hands and fingers, and lower back pain radiating towards the left leg and some numbness at the first through third toes. The examiner found the Veteran's motor strength to be grossly normal and sensation to be intact to light touch. The examiner diagnosed the Veteran with paresthesias and referred the Veteran to a neurologist.
In a July 2006 private medical record, Dr. A.H.F. noted that the Veteran had been referred to her by Dr. G.S. She found him to have hand numbness and neck pain. The private medical records from Dr. A.H.F. do not document any complaints of, or treatment for, lower extremity neurological abnormalities. The only indication of such an abnormality was in a September 2006 private medical record, wherein the Veteran noted that in "retrospect...briefly ha[s] some tingling in his toes". Such an indication does not indicate a chronic neurological abnormality of the lower extremities. Furthermore, the rest of those private medical records document treatment the upper extremities related to the cervical spine, without any findings of lumbar spine involvement.
In an October 2006 letter, the Veteran's neurologist, Dr. C.E.L., Jr., found the Veteran's lower extremities to have 5/5 strength and a normal sensory exam. The examiner also noted that MRIs and EMG nerve conduction studies had found evidence of a cord compressing herniated disc of the cervical spine.
In the December 2006 VA examination, the Veteran complained of numbness in the hands and feet and indicated that his left leg was a problem. The examiner did not find any abnormal sensation. The December 2011 VA examiner also performed muscle, reflex, sensory and straight leg testing, which indicated some abnormal findings; however, the examiner specifically found that the Veteran's back disability did not result in radicular pain or symptoms due to radiculopathy.
Although the Veteran does have a diagnosis of paresthesias, it appears to be in relation to his cervical spine, as shown in the records of Dr. A.H.F. and Dr. C.E.L., Jr. Furthermore, the December 2011 VA examiner specifically found the Veteran to not have radicular pain or symptoms due to radiculopathy. As such, the Board finds that separate ratings for neurologic abnormalities of the lower extremities are not warranted.
The Board has also considered whether the Veteran is entitled to higher ratings under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes for both periods on appeal. No evidence shows that the Veteran had incapacitating episodes prescribed by a physician or as part of a physician's treatment for his service-connected lumbar spine disability. At the December 2011 VA examination, the Veteran reported increased pain with bed rest and medications, but did not indicate whether it was physician prescribed bed rest. The private medical records do not document any periods of physician prescribed bed rest or a diagnosis of IVDS related to the lumbar spine. As such, there is no evidence of record that the Veteran has been diagnosed with IVDS or prescribed bed rest by a physician. As such, when considering the Veteran's back disability under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, he is not entitled to higher ratings.
For the reasons and bases discussed above, the Veteran's back disability does not warrant a disability rating in excess of 10 percent prior to December 14, 2011, or a disability rating in excess of 20 percent thereafter. Additionally, as of December 14, 2011, he is entitled to a separate 10 percent rating for his bowel impairment associated with his back disability.
The Board has also considered the Veteran's statements with regard to the severity of his back disability and any associated symptoms. In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing chronic pain, tingling, or numbness. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence with respect to the presence of pain, tingling, and numbness, and the severity of such during his two VA examinations, private treatment records, and during his August 2012 Board hearing. He is competent to provide such statements. The Veteran's reported symptomatology has been noted in the rating decisions issued by the RO, and the Board has considered the Veteran's reports with respect to the nature and severity of his symptoms in evaluating his assigned ratings. With respect to the Rating Schedule, the criteria set forth therein generally require medical expertise where the types of findings required are not readily observable by a lay person, which includes whether the Veteran's symptoms result in functional impairment. Therefore, the objective medical findings provided by the Veteran's VA examination reports have been accorded greater probative weight where applicable. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches . . . the credibility and weight to be attached to these opinions [are] within the province of the adjudicator.").
The Board has considered whether additional staged ratings are appropriate for the Veteran's service-connected back disability; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning additional staged ratings for such disability is not warranted. See Hart, 21 Vet. App. at 505.
Overall, the Board finds that a rating in excess of 10 percent prior to December 14, 2011, and a rating in excess of 20 percent thereafter for the Veteran's back disability are not warranted. The Board does find, however, that a separate disability rating of 10 percent, and no more, should be granted for the neurological abnormality of a bowel impairment, from December 14, 2011. In denying such increased ratings, the Board finds that, as the preponderance of the evidence is against such claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Prostatitis
The Veteran contends that his service-connected prostatitis, with nongonococcal urethritis, is more severe than indicated by his current noncompensable disability rating. The Veteran is currently evaluated under Diagnostic Code 7527.
Pursuant to Diagnostic Code 7527, postoperative residuals of prostate gland injuries, infections, and hypertrophy are evaluated as voiding dysfunction or urinary tract infection, whichever is predominant.
Voiding dysfunction is evaluated under 38 C.F.R. § 4.115a. Voiding dysfunction is further classified as involving urine leakage, urinary frequency, or obstructive voiding. 38 C.F.R. § 4.115a.
For urinary leakage, a 20 percent rating is warranted for urinary leakage requiring the wearing of absorbent materials, which must be changed less than 2 times per day. A 40 percent rating is warranted for urinary leakage requiring the use of absorbent materials which must be changed 2 to 4 times a day. A 60 percent evaluation is warranted for urinary leakage requiring the use of absorbent materials which must be changed more than four times a day.
For urinary frequency, a daytime voiding interval between two and three hours, or awakening to void two times per night warrants a 10 percent rating. A 20 percent evaluation contemplates a daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 40 percent evaluation contemplates a daytime voiding interval less than one hour, or awakening to void five or more times per night.
For obstructive voiding, a 10 percent rating is warranted with marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of: (1) post void residuals greater than 150cc; (2) uroflowmetry showing markedly diminished peak flow rate (less than 10cc/sec); (3) recurrent urinary tract infections secondary to obstruction; or (4) stricture disease requiring periodic dilatation every 2 to 3 months. A 30 percent rating is warranted where there is urinary retention requiring intermittent or continuous catheterization.
38 C.F.R. § 4.115a also contains the criteria for rating urinary tract infection. A 10 percent rating is warranted for long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management. A 30 percent is assigned for recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. Poor renal function is also to be rated as renal dysfunction.
In the December 2006 VA examination, the Veteran denied having recurrent urinary tract infections. In the December 2011 VA examination, he reported a history of recurrent symptomatic bladder or urethral infections, but reported that he did not receive any treatment. While the December 2011 VA examiner did not specify when the Veteran had his last infection, the medical evidence of record does not list a history of infections since 1996 (February 1996 report of operation by Dr. V.K.). Moreover, at the December 2011 VA examination, the Veteran reported that he received no treatment for urinary tract infections and, prior to that, he reported not having them. As such, a compensable rating for urinary tract infection based on long-term drug therapy, hospitalizations and/or requiring intensive management is not shown by the record.
Furthermore, the Board notes that rating urinary tract infection based on poor renal function (to be rated as renal dysfunction) is not warranted. In this regard, the Board again notes that there is no evidence of urinary tract infections during the appeal period. Moreover, in a January 2010 rating decision, the RO granted a 60 percent disability rating for polycystic kidneys, under Diagnostic Code 7533. Under that criteria, cystic disease of the kidneys are rated as renal dysfunction.
Under 38 C.F.R. § 4.14, evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. As the Veteran is already rated for renal dysfunction based on his separately service-connected polycystic kidneys, rating him under the same criteria for the same due to urinary tract infections would constitute improper pyramiding.
The Veteran's claim will also be considered based on voiding dysfunction. During the August 2012 Board hearing, the Veteran complained of urinary frequency, but denied urinary hesitancy. He further alleged that his urinary symptoms were related to his service-connected prostatitis rather than his nonservice-connected prostate cancer and related surgery.
In December 2006, the VA examiner noted that the Veteran complained of urgency incontinence, but that he did not wear absorbent pads. Furthermore, although the December 2006 VA examiner found the Veteran to have urgency, he also found the urgency to be due to the nonservice-connected carcinoma prostate status post radical prostatectomy.
The December 2011 VA examiner noted that the Veteran had received a transurethral surgery in 2001, which relieved symptoms of small stream and frequency. The examiner further noted, however, that following his diagnosis of prostate cancer and surgery in 2004, the Veteran reported stress incontinence with urinary frequency. The VA examiner further found that the etiology of the Veteran's voiding dysfunction was due to his surgery for prostate cancer.
The Board acknowledges the Veteran's contention that his urinary symptoms are related to his service-connected prostatitis; however, the Board finds that, as a lay person, he is not competent to render such an etiological opinion. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Moreover, the competent evidence of record demonstrates that his urinary symptoms are related to his nonservice-connected prostate cancer and associated surgery.
In this regard, while the Veteran contends that his problems of urinary frequency and incontinence have been continuous since service and, therefore, related to his prostatitis, the evidence of records contradicts such statement. Specifically, during the March 1995 VA examination for the bladder, however, the Veteran only complained of mild increase in urinary frequency associated with increased volume of oral fluid intake. The VA examiner found no increase of urinary frequency that would be considered pathologic. Furthermore, the examiner found that he was not incontinent to urine.
Additionally, during the December 2011 VA examination the Veteran reported receiving a transurethral surgery in 2001 that had relieved symptoms of small stream and frequency. He further indicated that it was not until after the diagnosis of prostate cancer and surgery that he had stress incontinence with urinary frequency. Moreover, the private medical records similarly do not document continuous bladder complaints. In a June 2004 private medical record, Dr. G.P.S. noted that the Veteran had no urinary complaints. In an October 2006 letter, Dr. C.E.L., Jr. noted that the Veteran denied having bladder dysfunction.
Moreover, as discussed previously, both VA examiners, who are medical professionals and competent to render an opinion regarding etiology, have clearly found that the Veteran's urinary symptoms are due to his prostate cancer and surgery rather than his prostatitis.
The Board has considered whether staged ratings are appropriate for the Veteran's service-connected back disability; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. See Hart, 21 Vet. App. at 505.
Therefore, the Board finds that the competent and credible evidence of record shows that the Veteran does not have voiding dysfunction due to his service-connected prostatitis. Additionally, a compensable disability rating is not warranted based on urinary tract infections. As such, a compensable disability rating for prostatitis is not warranted. In reaching this decision, the Board finds that, as the preponderance of the evidence is against such claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Other Considerations
the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1).
In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under
§ 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.
Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id.
The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected lumbar spine disability and prostatitis with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which such disabilities are rated. In this regard, the Veteran's back disability is manifested by pain and limitation of motion, which are specifically addressed under the General Rating Formula for Diseases and Injuries of the Spine. Moreover, as such disability resulted in bowel impairment, he has been granted a separate rating so as to contemplate his symptoms of occasional moderate leakage associated with such impairment. Additionally, regarding the Veteran's prostatitis, the evidence reflects that he currently does not have any symptoms associated with such disability. Therefore, there are no additional symptoms of the Veteran's back disability or prostatitis that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disabilities. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment, which he denied, or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).
As indicated in the Introduction, in Rice, supra, the Court held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. However, as the Veteran's TDIU claim is being remanded for additional development, no further discussion of such is necessary at this time.
ORDER
A rating in excess of 10 percent prior to December 14, 2011, and in excess of 20 percent thereafter for chronic lumbosacral strain is denied.
As of December 14, 2011, a separate 10 percent rating, but no higher, for bowel impairment, as a neurological abnormality of the chronic lumbosacral strain, is granted, subject to the laws and regulations governing payment of monetary benefits.
A compensable evaluation for prostatitis, with nongonococcal urethritis, is denied.
REMAND
Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims for service connection for prostate cancer and entitlement to a TDIU so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
Relevant to his claim for service connection for prostate cancer, the Veteran received a VA examination in December 2006. At such time, the VA examiner diagnosed carcinoma of the prostate status-post radical prostatectomy and opined that it was less likely that such was secondary to his prostatitis or urethritis. However, he did not offer a rationale for his opinion. Where a medical examination does not contain sufficient detail to decide the claim on appeal, the Board must return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2. Therefore, the Board finds that a remand is necessary in order to obtain another opinion regarding the etiology of the Veteran's prostate cancer.
The Board also notes that during the August 2012 Board hearing, the Veteran also claimed to have had high prostate specific antigens (PSAs) in service. He essentially contends that he had prostate cancer in service, but that it was not diagnosed until after service. The VA examiner should also address that contention.
Additionally, the Veteran testified that he received PSA tests in 1995 and 1996 from the Norfolk Medical Center. Such records do not appear to be associated with the claims file. Therefore, on remand, the Veteran should be given an opportunity to identify any treatment records relevant to his prostate cancer/PSA testing and, thereafter, such should be obtained for consideration in his appeal. Furthermore, the Veteran has not been provided with proper VCAA notice regarding the secondary aspect of his claim of entitlement to service connection for prostate cancer. Such should be accomplished on remand.
As discussed in the Introduction, the issue of entitlement to a TDIU has been raised by the Veteran. Therefore, on remand, the Veteran should be provided Veterans Claims Assistance Act of 2000 (VCAA) notice regarding the information and evidence necessary to substantiate a TDIU, be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), and the AOJ should obtain all outstanding treatment records regarding his service-connected disabilities. Furthermore, an opinion regarding whether such disabilities, either singularly or jointly, render the Veteran unemployable should be obtained. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994).
Accordingly, the case is REMANDED for the following actions:
1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his claim of entitlement to service connection for prostate cancer as secondary to prostatitis with nongonococcal urethritis as well as his TDIU claim. He should also be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability).
2. The Veteran also should be given an opportunity to identify any healthcare provider who treated him for his prostate cancer/PSA testing and service-connected disabilities. After securing any necessary authorization from him, obtain all identified treatment records, to include those from the Norfolk Medical Center in 1995 and 1996. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).
3. After completing the aforementioned development, the claims file should be forwarded to an appropriate medical professional to offer an opinion regarding the etiology of the Veteran's prostate cancer. The claims file and a copy of this Remand must be made available to the examiner, and the examiner shall indicate in the report that the claims file was reviewed. The need for an additional examination of the Veteran is left to the discretion of the examiner selected to write the opinion.
Following a review of the record, the examiner should render an opinion regarding the following:
(a) Is the Veteran's prostate cancer at least as likely as not related to his military service? In this regard, the examiner should also discuss the Veteran's contentions of having signs of prostate cancer in service, including his claim of high PSAs.
(b) Did the Veteran's prostate cancer manifest within one year of his service discharge in November 1994? If so, what were the manifestations?
(c) Is the Veteran's prostate cancer at least as likely as not caused or aggravated by his prostatitis with nongonococcal urethritis?
A complete explanation must be given for all opinions and conclusions expressed.
4. After completing the aforementioned development, the claims file should be forwarded to an appropriate medical professional to offer an opinion as to whether the Veteran's service-connected disabilities render him unemployable. The claims file and a copy of this Remand must be made available to the examiner, and the examiner shall indicate in the report that the claims file was reviewed. The need for an additional examination of the Veteran is left to the discretion of the examiner selected to write the opinion.
Following a review of the record, the examiner should render an opinion as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, either singularly or jointly, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. In this regard, the Veteran is service-connected for polycystic kidneys (60 percent); chronic lumbosacral strain (10 percent prior to December 14, 2011 and 20 percent from that time); bowel impairment (10 percent); fractures of the right arm, left little finger, right ring finger (noncompensable); status post left inguinal hernia repair (noncompensable); prostatitis with nongonococcal urethritis (noncompensable); and tinea cruris (noncompensable).
All opinions offered should be accompanied by a rationale.
5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response.
Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs